The modern First Amendment began with a turn of the clock, on a Monday on March 13, 1919, the moment of the release of Justice Holmes's seminal opinion in Schenck v. United States. At that pinpoint in time, First Amendment history was reconfigured and the liberty-denying past gradually began to fade away in the years and opinions that followed. Holmes laid his claim to the conceptual turf and what followed is what we call modernity. True, Learned Hand had his moment, too, in 1917 with his district court opinion in Masses Publishing Co. v. Patten. But that opinion, for all its insights, took on meaning primarily as a comparative point to the work of the Great Holmes. And then there is the work of Zechariah Chafee, the scholar who lent his own measure of staying power to the Holmesian notion of free speech law. Before these three Harvard men, however, there was Utah born man who came onto the First Amendment scene, a man far less credentialed and polished, a University of Wisconsin Law School trained lawyer who championed a libertarian creed and contested the will of a very powerful man, Anthony Comstock. That radical lawyer, whose name and work have largely remained cabined in the confines of forgotten history, was Theodore A. Schroeder. Like Holmes, he too had a vision of free speech law. What follows is the first of a series of articles that introduces the reader to Schroeder and his many works concerning free expression. Those works first took root not in political speech, but in area of freedom far more important to the progressives of his day - sexual expression. We come to his story thirteen years before Holmes's glorious moment in 1919, on an occasion when Messrs. Schroeder and Comstock were to debate the topic of sexual expression. Several months later, Theodore Schroeder published an article in the Albany Law Journal ("The Constitution and Obscenity Postal Laws"), which is the main focus of this article. Drawing on a measure of history and analysis, the aim is to provide the reader with an idea of how Schroeder conceptualized his vision of free speech freedom.

[On Professor Collins's observation that Schroeder's "name and work have largely remained cabined in the confines of forgotten history": I don't doubt that's true for the general public, but, as Professor Collins fully appreciates, Schroeder is no stranger to scholars after our Guest Blogger David Rabban's “The Free Speech League, the ACLU, and Changing Conceptions of Free Speech in American History,” 45 Stanford Law Review 47 (1992), and Free Speech in Its Forgotten Years (1997). Thus, Professor Collins writes that this first installment on Schroeder "build[s] on what Professor David Rabban has written." DRE.]

1 comment:

Professor Ernst correctly mentions my reference to Professor Rabban's works referencing Theodore Schroeder. I cite to Rabban's works numerous times, and do likewise to those of Professor Mark Graber. My point, as quoted, was that Schoreder's name and work have LARGELY remained cabined in the confines of forgotten history." In this regard, the VAST majority of books and articles on the history of free speech in America either do not mention him at all, or do so only in passing. And none really critically examines any of his individual works in any thorough way. In this draft of an article, and others to come, I set out to do just that.